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State v. Loder

April 6, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELLY LODER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 107-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 16, 2009

Before Judges Sapp-Peterson and Espinosa.

Defendant, Kelly Loder, appeals from her conviction, following the entry of a guilty plea before the municipal court and de novo appeal to the Law Division, for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4. Defendant claims that the defense of necessity, which she successfully asserted in connection with the other charges lodged against her, should apply to the refusal charge. We disagree and affirm substantially for the reasons expressed by Judge Robert Neustadter in his March 25, 2009 oral opinion.

On June 2, 2008, defendant was arrested and charged with driving under the influence, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; and failure to maintain her lane of travel, N.J.S.A. 39:4-88. On September 30, 2008, based upon the State's concession that it would be unable to sustain its case against the defense of necessity, the municipal court judge dismissed all of the charges, with the exception of the refusal offense.

As to the refusal charge, the municipal judge concluded that the defense of necessity did not apply. Defendant thereafter pled guilty. The court imposed a $1006 fine, a $100 drunk driving surcharge, revoked defendant's license for ten years, and ordered defendant to spend twelve hours attending the Intoxicated Drivers' Resource Center over two consecutive days. The court stayed the imposition of its sentence until after disposition of defendant's post-conviction relief applications that were pending in Atlantic City Municipal Court. See State v. Laurick, 120 N.J. 1, 17, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990). Defendant subsequently moved for reconsideration of the court's determination that the necessity defense did not apply to the refusal charge or, alternatively, for post-conviction relief based upon the same premise. The court treated defendant's application as a motion to withdraw her guilty plea pursuant to Rule 7:6-2(b) and denied the motion. The court once again stayed sentencing, pending appeal of the conviction to the Law Division.

In an April 7, 2009 order from the Law Division, Judge Neustadter, for reasons he placed on the record on March 25, affirmed the municipal court judge's order denying defendant's motion to vacate the guilty plea. The court vacated the stay and ordered that defendant commence serving the custodial portion of her sentence. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE MUNICIPAL COURT JUDGE'S FINDING THAT DEFENDANT'S OPERATION WAS JUSTIFIED BY THE DEFENSE OF NECESSITY PRECLUDES A CONVICTION FOR REFUSAL.

POINT II

THE POLICY UNDERLYING NEW JERSEY'S REFUSAL LAWS DOES NOT SUPPORT THE PRESENT CONVICTION; DEFENDANT IS NOT THE INTOXICATED DRIVER ENVISIONED BY OUR LEGISLATURE.

Whether the defense of necessity may be applied to a refusal charge is a question of law subject to de novo review. Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63, 84 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006), cert. denied, 549 U.S. 115, 127 S.Ct. 984, 166 L.Ed. 2d 710 (2007). As such, no deference is owed to the trial court's "interpretation of the law and the legal ...


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